Davis v. Kramer

• Decision Date: 10 March 1999
• Docket Number: No. 98-16122,98-16122
• Citation: 167 F.3d 494
• Parties: 99 Cal. Daily Op. Serv. 1775, 99 Cal. Daily Op. Serv. 689, 1999 Daily Journal D.A.R. 2304, 99 Daily Journal D.A.R. 879 Dwayne A. DAVIS, Petitioner-Appellee, v. M.C. KRAMER, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 494

167 F.3d 494

99 Cal. Daily Op. Serv. 1775, 99 Cal. Daily

Op. Serv. 689,

1999 Daily Journal D.A.R. 2304,

99 Daily Journal D.A.R. 879

Dwayne A. DAVIS, Petitioner-Appellee, v. M.C. KRAMER, Respondent-Appellant.

No. 98-16122.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 8, 1998.

Decided Jan. 26, 1999.

As Amended March 10, 1999.

Seth K. Schalit, Deputy Attorney General, San Francisco, California, for respondent-appellant M.C. Kramer.

Steven Kalar, Assistant Federal Public Defender and Geoffrey A. Hansen, Chief Assistant Federal Public Defender, San Francisco, California, for petitioner-appellee Davis.

Appeal from the United States District Court for the Northern District of California; Marilyn Hall Patel, District Judge, Presiding. D.C. No. CV-96-04646-MHP.

Before: REINHARDT, NOONAN, and HAWKINS, Circuit Judges.

REINHARDT, Circuit Judge:

The state of California appeals the district court's order granting Dwayne Davis a writ of habeas corpus. We must determine whether the California courts' denial of Davis' state habeas petition, in which Davis alleged that his appellate counsel failed to satisfy the constitutional requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), was "contrary to" or an "unreasonable application of" clearly established federal law. See 28 U.S.C. § 2254(d). Because we conclude that it was, we affirm the decision of the district court that the writ issue.

I.

In 1994, following a jury trial, Davis was convicted of first degree burglary. He was sentenced to eleven years in prison. In his appeal, Davis' appellate attorney limited her representation to filing a "no-merit brief" pursuant to the standards enunciated by the California Supreme Court in People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (Cal.1979). The brief merely recited the procedural history and facts of the case. Not only did the brief fail to identify any possibly meritorious arguments, it flatly failed to point to anything in the record that might have warranted an appeal. The brief simply lodged a request that the court "independently review the entire record on appeal in this case."

Following his attorney's submission of this brief, Davis filed an appellate brief on his own behalf. He argued, inter alia, that his trial counsel was ineffective for failing to hire an independent fingerprint expert and for failing to conduct an investigation of the crime scene, and that the trial court erred in failing to instruct on a lesser included offense. In an unpublished decision, the California Court of Appeal affirmed the judgment of conviction.

In 1996, Davis filed pro se petitions for a writ of habeas corpus in California Superior Court, the California Court of Appeal, and the California Supreme Court. In each, he raised claims of ineffective assistance of trial and appellate counsel. Each court denied Davis' petition. The California Supreme Court summarily denied Davis' final petition in May of 1996. In December of 1996, Davis filed a pro se petition for a writ of habeas corpus in federal district court. In his federal petition, Davis again raised claims of ineffective assistance of trial and appellate counsel. He also argued, inter alia, that the evidence was insufficient to support his conviction, and that the trial court erred by failing to instruct the jury on the lesser included offense of trespass.

The district court granted Davis a writ. The court held that Davis had been denied the effective assistance of appellate counsel because that counsel's submission of a "Wende " brief, which raised no issues for appeal and pointed to no part of the record that might warrant such an appeal, failed to satisfy the federal constitutional standards enunciated in Anders and Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). It then denied all of Davis' remaining claims.

II.

The state's primary argument in this appeal is that the district court's decision does not comport with the requirements of the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d). AEDPA wrought a number of changes in the statute governing habeas corpus proceedings by persons convicted of state offenses. Under § 2254(d):

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States....

The state contends that the district court's decision was not supported by clearly established federal law, as determined by the United States Supreme Court, and was therefore improper. We reject the state's argument. ¹

In Anders, 386 U.S. at 739, 87 S.Ct. 1396, the defendant had been convicted of felony possession of marijuana. On appeal, Anders' court-appointed counsel concluded that any appeal would lack merit and so notified the court in a letter brief. Other than informing him of his right to file a pro se brief, Anders' counsel failed to do anything else on his behalf. See id. at 739-40, 87 S.Ct. 1396.

The Court delineated a court-appointed appellate counsel's duty to represent his client after "determin[ing] that there is no merit to the indigent's appeal." It began its analysis by reaffirming indigent defendants' right to counsel on appeal. The Court noted that it had "consistently held invalid those procedures 'where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself.' " Id. at 741, 87 S.Ct. 1396 (quoting Douglas v. California, 372 U.S. 353, 358, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963)). It then wrote that this "constitutional requirement of substantial equality and fair process" is only realized where the court-appointed counsel "acts in the role of an active advocate in behalf of his client." Anders, 386 U.S. at 744, 87 S.Ct. 1396. In no uncertain terms, the court held that when appellate counsel simply submits a "no-merit letter," such as the one submitted by Anders' appellate counsel, he does not fulfill his constitutionally mandated responsibility to act in the "role of an active advocate." The court held that the submission of a no-merit letter is simply not "an adequate substitute for the right to full appellate review." Id. at 742, 87 S.Ct. 1396 (quoting Eskridge v. Washington State Bd., 357 U.S. 214, 215, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958)).

The Anders Court then explained the procedure, required by the constitution, that an appellate counsel must follow if he determines that an appeal would be frivolous:

[I]f counsel finds his case to be wholly frivolous after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal....

Anders, 386 U.S. at 744, 87 S.Ct. 1396.

Significantly, Anders goes on to hold that when an appellate attorney fails to comply with these constitutional standards, and merely files a no-merit brief of the sort filed on behalf of Anders, the defendant is deprived of his right to counsel on appeal. See id. at 745, 87 S.Ct. 1396. In the Court's words, where counsel files a no-merit brief that does not comport with these standards, the defendant is left to "shift entirely for himself." Id. (emphasis added).

In Robbins v. Smith, 152 F.3d 1062 (9th Cir.1998), we applied Anders to a case factually indistinguishable in all relevant respects from the case at bar. Although Robbins was a pre-AEDPA case, because our decision there was simply an application of Anders, Robbins' reasoning is equally applicable in AEDPA cases.

In Robbins, defendant's appellate counsel filed a "no-merit brief" pursuant to People v. Wende, 158 Cal.Rptr. 839, 600 P.2d at 1074. Robbins, 152 F.3d at 1064. The brief filed in Robbins was indistinguishable from the brief filed by Davis' appellate counsel here: it "briefly outlined the facts surrounding Robbins's trial and failed to present any possible grounds for appeal. Included in the short document was a request that the court itself review the record for arguable issues." Id. As here, Robbins filed an appellate brief on his own behalf, but his appeal was unsuccessful. As here, the district court granted Robbins' petition for a writ of habeas corpus, holding that Robbins' appellate counsel had failed to satisfy the requirements established in Anders.

The state argued in Robbins, as it does here, that because the no-merit brief complied with the standards enunciated by the California Supreme Court in Wende, the district court erred in determining that the brief was insufficient under Anders. Robbins, 152 F.3d at 1066. ² The Robbins court expressly rejected the state's argument. Id. at 1066-67. Relying on "the United States Supreme Court's requirements set forth in Anders," the court held that, despite the fact that the no-merit brief complied with Wende, the requirements of Anders "were not met." Id. at 1067. As the court wrote:

The brief filed on Robbins's behalf completely failed to identify any grounds that arguably supported an appeal. Rather, it briefly summarized the procedural and...